Mailbag for April 8, 2011

This week we’re taking a look at reader questions about the legitimacy of certain kinds of punishment and whether doctors or veterinarians would be legally licensed to treat extraterrestrials. As always, if you have questions or post suggestions, please send them to james@lawandthemultiverse.com and ryan@lawandthemultiverse.com or leave them in the comments.

I. Modification/Mutilation of Supervillains as Punishment

Joe asks about the punishment meted out to Sabbac, basically an evil version of Captain Marvel who, like his counterpart, could transform into a superbeing by uttering a word of power. When Sabbac was apprehended, he was sentenced to having his larynx removed to prevent him from speaking this word. Joe’s question is whether this would be a constitutional punishment, given the 8th Amendment prohibitions against “cruel and unusual punishment.”

The most obvious parallel is to chemical castration, where convicted sex offenders, usually pedophiles, are treated with what amounts to Depo Provera, a hormone drug usually used as a contraceptive. In women, that’s basically its only use, but in men, the drug generally results in a massively reduced sex-drive. Which, for pedophiles, is no bad thing.

About a dozen states use chemical castration in at least some cases, and there does not appear to have been a successful challenge on constitutional grounds. This may in part be due to the fact that a significant percentage of the offenders who are given the treatment volunteer for it, as it offers a way of controlling their urges. If the person being sentenced does not object, it’s hard to come up with standing. Either way, despite health and civil rights concerns, this appears to be a viable sentence in the US legal system.

Fair enough. But it should not be hard to see that physically and permanently removing someone’s ability to speak is not exactly the same as putting a reversible chemical damper on their sex drive. It’s entirely possible to live an otherwise normal life with a low sex drive, but being mute is a little harder both to deal with and to hide. So while the idea of physical modification to the human body is not unconstitutional on its face, it remains to be seen whether this degree of modification would be permitted. For example, while chemical castration appears to be constitutional, it’s pretty likely that physical castration would not be. We can only say “pretty likely” because Buck v. Bell, a 1927 Supreme Court case that upheld (8 to 1!) a Virginia statute instituting compulsory sterilization of “mental defectives,” has never been expressly overturned, and tens of thousands of compulsory sterilizations occurred in the US after Buck, most recently in 1981.

On the other hand, Sabbac isn’t your run-of-the-mill offender here. He’s possessed by six demonic entities and capable of wreaking an immense amount of destruction. Part of the analysis in determining whether or not a punishment is “cruel and unusual” is whether or not the punishment is grossly disproportionate proportional to the severity of the crime. Ewing v. California, 538 U.S. 11, 21 (2003). This is, in part, why the Supreme Court has outlawed the death penalty for rape cases, i.e. if no one is dead, execution seems to be a disproportionate response. Coker v. Georgia, 433 U.S. 584 (1977).

The 8th Amendment also prohibits “the unnecessary and wanton infliction of pain,” including those “totally without penological justification.” Hope v. Pelzer, 536 U.S. 730, 737-38 (2002). Here, though, there is a clear penological justification, namely the prevention of future crimes, and the laryngectomy could be carried out in a humane manner without the infliction of unnecessary pain.

There are other criteria by which a punishment is judged, including whether it accords with human dignity and whether it is shocking or violative of fundamental fairness, but in a case like this necessity goes a long way, especially because the purpose of the operation is not retributive punishment.

So then, if the only way to prevent Sabbac from assuming his demonic form is to render him mute, then it’s possible that the courts would go along with that, particularly if it proved impossible to contain him otherwise and the operation was carried out in a humane manner.

II. Medical Treatment for Aliens

Jona asks whether it would be more proper for an alien to seek treatment from a physician or a veterinarian. This question revolves around the extent of the license under which each profession operates. Like law, the medical professions are all fairly well regulated and require practitioners to be licensed by the state. This serves both to ensure that professionals are competent, but it also permits the state to keep at least minimal tabs on those professionals in the event one of them should do something bad. It also permits the state to prohibit a professional who has engaged in egregious misconduct or is otherwise unfit to practice from doing so. There’s a lot in this, and we’ll probably return to it for a full post down the road a ways, but here’s some preliminary thoughts.

The question here is which license would provide the authority to treat an extraterrestrial. Whether or not the alien is intelligent is not actually part of the analysis, because that isn’t how the MD and DVM licenses are distinguished. Physicians are licensed to treat homo sapiens, and veterinarians are licensed to treat pretty much everything else. So at first glance, it would seem that vets would be better positioned to treat aliens than physicians, particularly aliens of the non-rubber forehead variety.

This isn’t really a matter of competence mind you: both a physician and a vet would presumably be equally out of their depth if faced with truly alien biology, if only because neither would actually have any idea what’s going on in there. Even analogizing to known species’ physiology would be impossible without a significant amount of study, and depending on the circumstances under which treatment was necessary, there might not be time for that. So if, for example, aliens crash-land and injured survivors are located, time may well be of the essence. In that case, it would probably wind up being a measure of which kind of professional could be located first.

On the other hand, physicians have two things going for them that vets tend not to. First, military and government agencies (outside departments of agriculture) are more likely to have institutional ties with physicians than with vets, and such agencies are likely to be first on the scene. Second, physicians work in hospitals, while vets work mostly in the field or in their own clinics. Most veterinary clinics don’t have anything resembling an ICU, as when it comes right down to it, animals aren’t really worth the expense. There aren’t many people who can afford to have their dog put on a ventilator, let alone livestock, the latter of which are raised for explicitly economic purposes. There’s just no odds in it. So as a matter of practice, physicians may well be more likely to be involved, licensing issues aside.

Ultimately, the question is probably moot. If we are operating under the assumption that this is an unexpected and potentially one-off occasion, licensing matters aren’t likely to even come up. They usually only do in malpractice situations, and most stories involving emergency treatment of extraterrestrials don’t seem to permit the aliens a sufficient degree of integration with human society to file lawsuits. And if aliens are that common and integrated, the medical professions would adapt to figure out which professions would wind up being licensed to treat them. Depending on their physiology, it could go either way. There’s more to consider about this, though, so look forward to a follow-up post in the future.

In that case I think it would almost certainly be constitutional. It would be reversible (even if only by the passage of time) and less painful (even done well I suspect a laryngectomy is more painful than a few Botox injections).

“First, military and government agencies (outside departments of agriculture) are more likely to have institutional ties with physicians than with vets, and such agencies are likely to be first on the scene. Second, physicians work in hospitals, while vets work mostly in the field or in their own clinics. Most veterinary clinics don’t have anything resembling an ICU, as when it comes right down to it, animals aren’t really worth the expense.”

I’m going to quibble with this point–the US Army has a very active, if small Veterinary Corps within its medical establishment. http://www.goarmy.com/amedd/army-health-care-corps/vet.html Their biggest mission is, surprisingly, food inspections–making sure that our mess halls aren’t rampant with food poisoning. (I think this is mostly for historical reasons)

However, they definitely are on most posts, and while some are less than ideal, I’ve worked with some higher-ranking vets that seem to be wired pretty tight–at least as far as I can tell from the outside. So if vets would be preferred because their license allows them to work on non-homo sapiens, you’re actually pretty likely to have an Army veterinarian relatively close by, or at least one that could be provided on order. Of course, if contact with extraterrestrials happens often, the DoD would assign one of the Armed Services a standing requirement to provide medical services to them, whether as part of the Army’s Vet Corps, or one of the Services human medical establishments.

As an aside, they actually have some pretty good veterinary facilities, though maybe not quite up to a full-blown human ICU. http://www.lackland.af.mil/news/story.asp?id=123121201 One of the veterinary technicians who worked for me assisted a vet (in Afghanistan) in repairing the shattered leg of a dog with steel pins.

I was going to say much the same thing – animal ICU’s and twenty four hour veterinary emergency rooms are becoming much more common than they used to be. Ten years ago in my semi-rural (but not farmland) county, there were no twenty four hour vets – today their are four.

Since there are security dog teams up at the sub base, I’d bet there’s a military (or at least DoN/DoD civilian) up there too.

The bigger problem with rending aid is that, aside from attending to physical conditions (for a lot of bumby head aliens, a broken arm is a broken arm), what drugs can you give them? Or some kind of blood transfusion? The basic fact that aliens may or may not be able to process anything on our planet (although they would likely be carbon based) isn’t really addressed in comics. (And then there’s the off-spring issue.) But that’s getting broader than what’s here…

Actually, in many jurisdictions, tort law allows you (the victim) to sue for negligence or malpractice if a rescuer renders aid but does so incompetently. The idea is that if someone without a pre-existing duty of care voluntarily undertakes the task of rescue, a duty of care then attaches, sort of an “in for a penny, in for a pound” doctrine. Contrast though with Good Samaritan statutes which offer rescuers immunity from just such a lawsuit (and/or immunity from criminal liability also) in order to encourage people to volunteer and give aid.

Interstellar law as shown in Star Trek VI may vary, but I would assume that since it’s championed by the do-gooding Federation and Starfleet, McCoy is protected by some measure of Good Samaritan immunity.

Things in the StarTrek universe are a bit less difficult ’cause pretty much all of the humanoid alien species are basicly forks of the same source code (don’t ask me for episode number or names, i’m not that good) and their spread to many different planets is intentional; so while technically alien (they were born in another planet or in space) their physiology is prone to having lots of similarities and analogs, this would help with both the medical knowledge question and the reproductive compatibility one.

This also conveniently explain the human head with add-ons tendency they have.

In the real world, could they mute a crimelord so he can’t send orders to kill his enemies and coordinate his troops; and when that fails ’cause he wrote down his orders or used sign languages or somthing, could they then either immobilize (permanently or otherwise) or sedate him?

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